SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38370/02 
by Bayram YILMAZ and Others 
against Turkey

The European Court of Human Rights (Second Section), sitting on    25 August 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 Mr R. Türmen
 Mr V. Butkevych
 Ms D. Jočienė, 
 Mr D. Popović, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 14 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Bayram Yılmaz, Mr Beşir Cerev and Mr Seyfettin Yıldız, are Turkish nationals who were born in 1963, 1975 and 1955 respectively. The first and third applicants live in Adana and the third applicant lives in Gaziantep. They are represented before the Court by Mr M. Çinkılıç and Mr K. Derin, lawyers practising in Adana.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 17 October 1994, 16 June 1994 and 30 September 1995, respectively, the applicants were taken into police custody on suspicion of aiding and abetting an illegal organisation, namely the Kurdistan Workers’ Party (“the PKK”).

On 1 November 1994, 16 June 1994 and 6 October 1995, respectively, the applicants were placed in detention on remand.

The public prosecutor at the Konya State Security Court initiated criminal proceedings against the applicants. He accused the first applicant of aiding and abetting an illegal organisation under Article 169 of the Criminal Code and the second and third applicants of membership of an illegal organisation under Article 168 of the Criminal Code.

The trial commenced before the Konya State Security Court.

On 22 June 1995 the first applicant was released pending trial.

On 19 May 1997, after the promulgation of Law No. 4210 which abolished the Konya State Security Court, the case file was transferred to the Adana State Security Court.

On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Adana State Security Court was replaced by a civilian judge.

On 16 November 2000 the Adana State Security Court, composed of three civilian judges, found the applicants guilty as charged. It sentenced the first applicant to three years’ nine months’ imprisonment and the second and third applicants to twelve years and six months’ imprisonment.

The applicants appealed. On 25 March 2002 the Court of Cassation rejected the second applicant’s request as he had failed to file his appeal within the procedural time-limit. The same day, the Court of Cassation decided that the criminal proceedings against the first applicant be terminated on the ground that the statutory time-limit under Article 102 of the Criminal Code had expired. The Court of Cassation further decided to uphold the decision of the Adana State Security Court in respect of the third applicant, endorsing the first instance court’s assessment of evidence and its reasons for rejecting the applicant’s defence.

COMPLAINTS

1.  Under Article 5 of the Convention, the applicants complain in the first place about the length of their police custody.

2.  The applicants further complain under Article 5 § 3 of the Convention that the length of their detention on remand exceeded a “reasonable time” within the meaning of this provision.

3.  The applicants allege under Article 6 § 1 of the Convention that they were tried and convicted by a court which did not meet the requirements of independence and impartiality on account of the presence of a military judge on the bench.

4.  They also complain that the criminal proceedings brought against them were not concluded within a reasonable time as required by Article 6 § 1 of the Convention.

5.  Finally, under Article 14 of the Convention, they maintain that they were discriminated against since the criminal procedures and the sentences for the offences tried before the State Security Court were different from the offences tried in other courts.

THE LAW

1.  The applicants complain that they were not brought promptly before a judge in breach of Article 5 § 3 of the Convention.

The Court observes that the applicants’ police custody ended on 1 November 1994, 16 June 1994 and 6 October 1995, respectively. However, the application was lodged with the Court on 14 August 2002, which is more than six months from the date of the facts giving rise to the alleged violation.

It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2.  The applicants further complain under Article 5 § 3 of the Convention about the length of their detention on remand.

In the present case the Court notes that the first applicant was released from detention on remand on 22 June 1995 pending trial. Furthermore the second and the third applicants were convicted by the judgment of the Adana State Security Court on 16 November 2000. Following that date, these applicants were detained “after conviction by a competent court” and no longer “for the purpose of bringing them before the competent legal authority” (see Turan v. Turkey (dec.), no. 879/02, 27 January 2005). Accordingly, the period to be considered under Article 5 § 3 of the Convention ended on 22 June 1995 in respect of the first applicant and on 16 November 2000 in respect of the second and third applicants. As the applicants lodged their application with the Court on 14 August 2002, this complaint has been introduced out of time.

Accordingly, this part of the application should also be rejected for non-compliance with the six-month time limit pursuant to Article 35 §§ 1 and 4 of the Convention.

3.  The applicants allege under Article 6 § 1 of the Convention that their right to a fair trial was breached on account of the presence of a military judge on the bench of the Adana State Security Court which tried them.

In respect of the first applicant, the Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see, in this respect, I.I. v. Bulgaria (dec.), no. 44082/98, 25 March 2004).

It observes that in the instant case the criminal proceedings against the first applicant were terminated on the ground that the statutory time-limit under Article 102 of the Criminal Code had expired. As a result, he was not convicted by the State Security Court.

In the light of the foregoing the Court concludes that the first applicant cannot claim to be a victim within the meaning of Article 34 of the Convention.

In respect of the second applicant, the Court observes that this applicant failed to file his appeal request with the Court of Cassation within the statutory time-limit and, as a result, his appeal was rejected. Accordingly, the Court holds that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies in due and proper form (see, mutatis mutandis, Özdemir v. Turkey, no. 59659/00, § 26, 6 February 2003).

In respect of the third applicant, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4.  The applicants also complain under Article 6 § 1 of the Convention about the length of the proceedings.

In respect of the second applicant, the Court observes that the applicant failed to lodge an appeal against the judgment of the Adana State Security Court within the time-limit and, as a result, the criminal proceedings that were instigated against him became final with the decision of the Adana State Security Court on 16 November 2000. As the application was lodged with the Court on 14 August 2002, this complaint has been introduced out of time. Accordingly, this complaint should be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

In respect of the first and third applicants, the Court notes that the criminal proceedings that were brought against the first and third applicants lasted seven years and five months, and six years and six months respectively. The Court therefore considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5.  The applicants finally complain under Article 14 of the Convention that they were discriminated against since the criminal procedures and sentences for offences tried before the State Security Court were different from those in respect of offences tried in other courts.

In respect of the second applicant, for the same reasons as above, his complaint has been introduced out of time. Accordingly, this part of the application should be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

In respect of the first and third applicants, the Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or group of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, p. 29, § 56).

In the instant case, the distinction was made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity (see, mutatis mutandis, Gerger v. Turkey [GC], no. 24919/94, § 69, ECHR 1999, and Kömürcü v. Turkey (dec.), no. 77432/01, 28 November 2002). The Court sees no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention.

Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints concerning the length of the proceedings in respect of the first and third applicants, and the independence and impartiality of the Adana State Security Court in respect of the third applicant;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

YILMAZ AND OTHERS v. TURKEY DECISION


YILMAZ AND OTHERS v. TURKEY DECISION